Gonzales v. State
| Decision Date | 30 June 1956 |
| Docket Number | No. 28327,28327 |
| Citation | 163 Tex.Crim. 432,293 S.W.2d 786 |
| Parties | Armando Postel GONZALES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Percy Foreman, King C. Haynie, Houston, for appellant.
Dan Walton, Dist. Atty., Eugene Brady and Thomas D. White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The indictment under which appellant was prosecuted was in two counts, the first alleging that he unlawfully possessed marijuana and the second, upon which he was found guilty and assessed a term of ten years, alleges 'that the said Armando Postel Gonzales, on or about the 18th day of August, A.D. 1955, in said County and State, did then and there unlawfully sell to Bobby French, marijuana.'
The court, in his charge, instructed the jury that it is unlawful for any person in this state to sell marijuana, and upon the verdict of the jury rendered judgment finding appellant 'guilty of the offense of unlawful sale of marijuana, a felony.'
The amended motion for new trial filed by appellant and his counsel on appeal being overruled, sentence was pronounced upon the judgment of conviction 'of unlawful sale of marijuana, a felony.'
It is contended for the first time in this Court that the indictment is fatally defective, there being no allegation that the substance sold was a narcotic drug.
It is also contended that the evidence is insufficient to show 'that the marijuana was that part of the marijuana plant which contained cannabis.'
It is true that there is no statute in this State which in terms declares that the possession or sale of marijuana (marihuana) is unlawful. The same is true as to cannabis, opium, morphine, heroin and codein.
Art. 725b, Vernon's Ann.P.C., regulating narcotic drugs, makes it unlawful for any person to sell any narcotic drug. Sec. 2(a). It defines 'Narcotic drugs' to mean, among other substances, cannabis and opium. Sec. 1(14). It defines cannabis and specifically provides that the term cannabis shall include the variety of cannabis known as marihuana. Sec. 1(13); and it defines opium as including morphine, codein and heroin. Sec. 1(12).
It follows that the sale of marihuana, morphine, codein or heroin is a sale of a narcotic drug, and an indictment which charges the sale of either, alleges a violation of Art. 725b, V.A.P.C. wherein the sale of narcotic drugs is prohibited.
But appellant argues that under the statutory definition of cannabis 'all marijuana is not cannabis', and that 'much marijuana which grows does not contain any cannabis at all.' He reasons that under the general allegation that appellant sold marijuana, he could be convicted of an offense not defined by the statute.
The answer to appellant's contention lies in the construction to be given Sec. 1(13) of Art. 725b, V.A.P.C., which reads:
'The term 'Cannabis' as used in this Act shall include all parts of the plant Cannabis Sativa L, whether growing or not, the seeds thereof, the resin extracted from any part of such plant and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the non-resinous oil obtained from such seed, nor the mature stalks of such plant, nor any product or manufacture of such stalks, except the resin extracted therefrom and any compound, manufacture, salt, derivative, mixture, or preparation of such resin. The term 'Cannabis' shall include those varieties of Cannabis known as Marihuana, Hashish and Hashoesh.'
As we understand this subsection, marijuana is cannabis, but 'cannabis' is not synonymous with 'Cannabis Sativa L'. The latter is the plant, whereas cannabis as used in the statute includes the growing plant but does not include the mature stalk, non-resinous oil and products or manufacture (except for resin) from said stalks.
It is not then correct to say that marijuana includes parts of the plant (Cannabis Sativa L) which is not cannabis and is not a narcotic drug. The statutory definition makes cannabis a narcotic drug. That part of the plant Cannabis Sativa L which is excepted and is not a narcotic drug under the statute, is not cannabis and is not marijuana.
In the recent case of Torres v. State, Tex.Cr.App., 278 S.W.2d 853, we referred to the offense as being possession of marijuana, and overruled the contention that the evidence of the chemist to the effect that the substance found in the possession of Torres was marijuana was insufficient to show that...
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Reyna v. State
...further and prove that marihuana was in fact a narcotic drug. See Fawcett v. State, 137 Tex.Cr.R. 14, 127 S.W.2d 905; Gonzales v. State, 163 Tex.Cr.R. 432, 293 S.W.2d 786; Locke v. State, 168 Tex.Cr.R. 507, 329 S.W.2d 873; Gonzalez v. State, 168 Tex.Cr.R. 49, 323 S.W.2d 55. The inclusion of......
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...interpretation. (Spence v. Sacks, 173 Ohio St. 419, 183 N.E.2d 363; People v. Stark, 157 Colo. 59, 400 P.2d 923; Gonzales v. State, 163 Tex.Cr.R. 432, 293 S.W.2d 786; State v. Jackson, Del., 239 A.2d 215; Common-wealth v. Leis, Mass., 243 N.E.2d 898; Escobio v. State, Fla., 64 So.2d 766; Un......
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